I recently had the pleasure of participating in the first international ESI Bytes program with Justice Colin Campbell, hosted by Karl Schieneman of JurInnov Inc. In “Lessons on e-Discovery in Canada”, we discussed how e-discovery is handled in Canada compared to the US, as there are clear procedural differences in our discovery process and our Rules of Civil Procedure. Justice Campbell and I agreed that many parties and their counsel in Canada are still ignoring ESI and printing email in “standard” cases. However, “non-standard” cases are more likely to address e-discovery issues. The panel agreed that while Canadian litigation practices are influenced by US litigation, Canada generally lags behind the US due largely to our cost regime (loser pays) and contingency fees (which are now becoming more prevalent). As Canada watched the US federal rule changes that occurred in 2006, we have been working towards developing our own e-discovery principles and guidelines, which have just recently made their way into many of the provincial rules.

When asked about spoliation cases in Canada, I was interested to hear Justice Campbell’s opinion that preservation of ESI was being practiced because of our discovery rules. I mentioned that in my practice, I have seen poor preservation practices, although some organizations and counsel are improving in this area. Cost sharing and cost shifting are also being considered more in Canadian cases.

While Canadians may look at US jurisprudence for guidance in e-discovery, the US cannot assume that US attorneys know Canadian law. When it comes to assembling a team for cross-boarder litigation in Canada, the US would be wise to use Canadian lawyers experienced with e-discovery issues, and use Canadian vendors and specialists in the e-discovery field. Similarly, Quebec counsel should be part of the legal team to address the very different civil law which Quebec practices.